Tough Judge Becomes Issue in Gang Trial

The judge held secret hearings, banned sketch artists and issued broad gag orders, making the Asian Boyz case one of the most restricted trials in Los Angeles County in recent memory.

First Amendment law experts have characterized some of the rulings as unconstitutional, even “bizarre.” But some legal experts say Van Nuys Superior Court Judge Darlene Schempp was probably motivated by nothing other than a desire to ensure a fair trial.

A general gag order covering the parties, issued at the start of the trial last September, has been extended to the families of defendants and victims, and even to jurors who had been excused from the case. Two hearings leading up to the dismissal of one juror appear to have been held in secret simply to prevent the media from reporting on juror misconduct, according to transcripts obtained by The Times.

“The bottom line is that judges in these instances are trying--in a laudable way--to exercise control where they don’t have any, and that’s outside the courtroom,” said Erwin Chemerinsky, a constitutional law expert with the USC School of Law.

He and others said that gag orders have become increasingly common in Los Angeles since O.J. Simpson was acquitted of murder charges. They still make up only a tiny percentage of the tens of thousands of criminal cases filed every year, although the cases often receive the most media attention.

Seven defendants have been convicted of five shootings that resulted in six deaths. Four of them are eligible for the death penalty and a jury will begin deliberations today on their punishment. Two others have each been sentenced to more than 100 years in prison. One defendant, who was a juvenile when the crimes were committed, is facing life without the possibility of parole.

In the 10 years he has prosecuted gang members, Deputy Dist. Atty. David Dimerjian said, he cannot remember another case in which lawyers were gagged or part of the trial was held in secret. But few gang trials capture public attention.

The Asian Boyz stand out for the unusually large number of killings--police say the Van Nuys faction of the gang killed as many as 13 people in 1995. The slayings included a botched home-invasion robbery, ferocious attacks on strangers as they drove on streets and freeways in the San Fernando and San Gabriel valleys and the bloody ambush of a rival Latino gang on the Lunar New Year.

In the middle of the trial, the father of the state’s key witness--a former gang member turned state’s evidence--was gunned down on the doorstep of his San Jose home. Media interest in the case spiked after the killing, which police say was in retaliation for Truong Dinh’s testimony.

Secrecy and security measures, already tight, quickly increased.

But the blanket of secrecy extended to questions about how well authorities performed, with prosecutors and police, citing Schempp’s gag order, declining to discuss the San Jose killing or whether Dinh’s relatives had ever been threatened or offered protection. No one has been charged in the case.

Schempp issued the original gag order forbidding lawyers and investigators from discussing the Asian Boyz case the day testimony began, at the request of one defense attorney.

One example of the reach of Schempp’s orders is defense attorney David Houchin, who has declined comment even though he is no longer involved in the case. His client, David Evangalista, has been convicted and was sentenced last month to several life terms for his crimes. Houchin told The Times that Schempp ordered him to reserve his comments until the case is over.

Likewise, Schempp has told jurors who have been excused not to talk to the media.

In court, Schempp justified her extension of the gag order to include victims and relatives of victims and defendants by asserting that they are “parties to the case.”

‘Paranoia and Obsession’

“That’s unheard of, in my experience,” 1st Amendment lawyer Doug Mirell said. “It sounds to me like paranoia and obsession have taken over.”

Donald Wager, a defense lawyer and president of the Los Angeles County Criminal Bar Assn., said defense lawyers will often seek gag orders in high-profile cases to try to keep information away from the jury that could prove prejudicial to the defendant.

Assistant Public Defender Bob Kalunian defended the general use of gag orders.

“When they’re granted, generally speaking, I think the interests of justice are served,” he said.

Chemerinsky said appeals courts across the country have issued widely different rulings on gag orders. He said the restraint of lawyers and law enforcement has generally been allowed, but the judge is on the “weakest ground” in attempting to prohibit family members to speak their minds.

“They’re not parties to the case,” he said. “The families of the victims and the families of the defendants should be able to say whatever they want to whomever they want.” Mirell agreed. He called the characterization of relatives as parties to the case “bizarre.”

Schempp, 68, has served as a Superior Court judge for 15 years and has presided over dozens of publicized cases. She did not return a phone call for comment. Judges are ethically prohibited from discussing pending cases. They are, however, allowed to explain rulings and procedures, said a spokeswoman for the Los Angeles Superior Courts.

A former Los Angeles deputy district attorney, Schempp served as a family law commissioner for seven years before her appointment.

Six years ago the conviction of a police officer in a murder-for-hire case she presided over was vacated by on appeal after the defense claimed jurors had read newspaper accounts of a co-defendant’s conviction. Schempp was ordered to question the jurors, which she did, and concluded there was no misconduct.

On April, in her most recent decision in the Asian Boyz case, she was conducting a hearing on allegations of misconduct by a juror when a Times reporter walked into the courtroom. Despite the fact that other members of the public sat in the gallery, listening to the proceedings, Schempp closed the hearing at the request of the defense.

Seeks to Avoid Being ‘Confronted’ by Press

Schempp cited “juror privacy,” and refused a request by the reporter for time to summon lawyers to challenge the closure.

A transcript of the hearing shows the judge told a juror who was being questioned: “All of this discussion happened only because I didn’t want the reporter in here.” Schempp scheduled another hearing at a time when, according to the transcript, she calculated she would not be “confronted” by the press.

“That kind of closure is clearly unconstitutional,” Chemerinsky said. “Judges can’t close criminal trials except in the most extraordinary circumstances. There would have to be something truly private about the juror” being discussed for the closure to be allowed.

Her subsequent ruling discharging the juror days later was made in open court, but only after The Times filed a motion to hold the hearings in public, a motion which the defense joined.

Schempp then refused to unseal the transcripts of the closed hearing, at the request of the defense, saying she had promised some of the jurors that the questioning would remain confidential.

“If you seal the whole darn thing, they’ll take it up on appeal,” Deputy Dist. Atty. Hoon Chun cautioned the judge.

“We’ll be done with this case before they [appeals court justices] rule,” Schempp replied, according to the transcript.

Schempp unsealed the transcripts last week, after The Times appealed.

“That’s inappropriate in my view,” Mirell said. He said that in cases where closed hearings have been allowed for juror confidentiality, the courts have been required to immediately release the transcripts of the sessions to the public.

“The impulse of the court to want to do everything it can to protect everyone is certainly an understandable impulse,” Mirell said. “But that impulse has to be balanced with the right of the public and the press as well as the rights of the defendants.”